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e-Discovery Docket Sheet
Data Destruction Pursuant To
Valid Document Retention Policy
Doesn't Warrant Spoliation Sanctions
In a patent-infringement suit, the plaintiffs argued that the defendant's claims should be dismissed based on the defendant's adoption of a document-retention policy that resulted in the destruction of potentially relevant electronic and paper documents. Prior to filing the litigation at issue, the defendant developed a document-retention policy requiring the destruction of e-mail contained on backup tapes after 3 months. In addition, the defendant held several “Shred Days” during which employees were instructed to follow the retention-policy guidelines to determine what to keep and what to throw away. In assessing the plaintiffs' argument, the court noted that the evidence failed to show that the defendant targeted any specific document or category of relevant documents with the intent to prevent production in the upcoming lawsuit. The court further found that the defendant's adoption of the policy was not designed to prevent the plaintiffs from obtaining evidence that would be helpful to the plaintiffs' defense. For these reasons, the court declined to accept the plaintiffs' argument and declared, “[The defendant's] adoption and implementation of its content neutral Document Retention Policy in mid-1998 was a permissible business decision…[and] did not constitute unlawful spoliation.” Hynix Semiconductor, Inc. v. Rambus, Inc., No. C-00-20905 RMW (N.D.Cal. Jan. 4, 2006).
Magistrate Recommends Spoliation
Sanctions For Failure To Stop
Automated e-Mail Deletion
In a breach-of-contract claim relating to the defendant's NASCAR team, the plaintiff sought sanctions against the defendant for destroying relevant e-mails. In defending its actions, the defendant claimed that its computer system was set up to delete internal and external e-mails automatically, unless affirmative efforts were taken to preserve them. As a result of the automated deletion, internal e-mails from key custodians were “irretrievably lost.” One key individual testified that he was never instructed to preserve relevant communications, even after the lawsuit commenced. In considering whether sanctions were justified, a magistrate judge declared “[s]uch normal procedures for destruction of documents must … be suspended when a party is on notice that they may be relevant to litigation, and the failure to make an adequate search of such documents before their destruction may be evidence of bad faith.” Although ultimately finding that the defendant's actions amounted to negligent spoliation and did not show evidence of bad faith, the magistrate found that sanctions would be appropriate and recommended that the trial court issue an adverse-inference instruction and an order allowing the plaintiff to present evidence of the spoliation. DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL 3502172 (E.D. Mich. Dec. 22, 2005).
Data Destruction Pursuant To
Valid Document Retention Policy
Doesn't Warrant Spoliation Sanctions
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.